Legal Analysis of the Strasbourg Deal of March 11 2019


Professor Michael Dougan, University of
Liverpool, 12 March 2019
Summary: The legal form of the “Instrument
relating to the Withdrawal Agreement” and / or the “Joint Statement supplementing
the Political Declaration” is of little importance.  The real question is whether the new measures
make any meaningful changes to the withdrawal package which was politically endorsed
in November 2018 and now awaits approval in the Commons. 
The
Instrument largely restates existing provisions of the Withdrawal Agreement
without making any appreciable additions or changes.  In particular: the “backstop” is still
capable of being activated and of remaining operational on a potentially
indefinite basis, unless and until the EU and UK agree to its amendment,
replacement or removal.  There is still no
legally binding or enforceable time limit on the “backstop”.  There is still no mechanism by which the UK
is entitled unilaterally to terminate the “backstop”.  The idea mooted in the Instrument, that the
UK could suspend operation of the “backstop” in retaliation for the EU being
found in breach of its duty to negotiate in good faith / use best endeavours,
is not new.  In the real world, such a
prospect should be considered almost entirely theoretical, if not altogether fanciful. 
The
Joint Statement seeks to flesh out the Political Declaration, which is itself
neither legally binding nor legally enforceable.  The new provisions are almost entirely about
the more detailed process for launching and conducting the future EU-UK
negotiations.  They offer no meaningful
guarantees about the timescales or indeed outcomes of those negotiations.
As
for the Prime Minister’s suggestion of a Unilateral Declaration reserving the
UK’s ability to disapply the “backstop” in certain circumstances, apparently regardless
of its obligations under the Withdrawal Agreement: it seems remarkable for the
Government openly to threaten to breach an international treaty even before it has
been approved and ratified.  In reality,
one might again argue that such a threat rings rather hollow, particularly
given the potential adverse implications for Northern Ireland.  But it still sits ill with the aspirations
and reputation of “Global Britain” for the Government to adopt such a cavalier
attitude towards respect for and compliance with international law.   


In
reality, the legal form of these documents is not especially significant.  They can be described in various ways as “having
legal force” or having “binding character” etc. 
But that is of little consequence, if the substantive content of the
documents adds / changes nothing to / of what exists already in the withdrawal
package; of if they contain promises / obligations which are incapable of
effective legal enforcement between the EU and the UK. 
The
real question is therefore: do the Instrument and / or Joint Statement make any
meaningful changes to the withdrawal package which was politically endorsed in
November 2018 and now awaits approval from the House of Commons?
The Withdrawal Agreement: Potential Impact
of the Instrument
In paragraphs A.5-A.11, the Parties set out more details about
how to pursue their common aspiration to replace the existing “backstop” with
alternative arrangements as soon as possible, e.g. as regards the establishment
of indicative timescales, the exploration of technological solutions, periodic
review of progress etc.  However, those
more detailed provisions in no way alter the underlying obligations contained
in the withdrawal package in general and the “backstop” provisions in
particular.  Moreover, due to their essentially
aspirational nature, those more detailed provisions are incapable of effective
legal enforcement so as to alter the substantive terms of the existing
“backstop”: a mere promise to try to negotiate so as successfully to deliver a
vague, uncertain and contingent future outcome is not capable of being enforced
so as to compel either party actually to deliver that vague, uncertain and
contingent outcome in the future.
In short: under the Withdrawal Agreement, even taking into
account the contents of the Instrument, the backstop is still capable of being
activated and of remaining operational on a potentially indefinite basis,
subject to mutual agreement between the parties for its amendment, replacement
or removal.  There is no legally binding
or enforceable time limit.  There is no
mechanism by which the UK is entitled unilaterally to terminate the backstop.
The
Instrument effectively acknowledges that underlying reality, in its discussion
of compliance with / enforcement of the parties’ commitments to seek to replace
the existing “backstop” with alternative arrangements. 
In paragraph A.4, the Parties give an illustrative example of
behaviour that should be considered a breach of the obligation to act in good
faith / use best endeavours: a systematic refusal to take into consideration
adverse proposals or interests.  That
illustrative example is rather far-fetched: international actors generally do
not behave overtly in such extreme ways. 
In the real world, it would be very difficult to prove a breach of the
obligation to act in good faith / use best endeavours on any such basis:
“taking X into consideration” is a relatively low threshold to satisfy, especially
since it does not require the relevant party to alter its subsequent views,
preferences, decisions or behaviours in any appreciable manner.  In any case, paragraph A.4 remains merely an
illustrative example and does not in any way change the substance of the
relevant provisions of the withdrawal package.
In paragraph A.12, the Parties give another illustrative
example of behaviour that should be considered a breach of the obligation to
act in good faith / use best endeavours: to act with the objective of applying
the “backstop” indefinitely.  Again, in
the real world, it would surely be very difficult to prove a breach of the
obligation to act in good faith / use best endeavours on any such basis: it
would be relatively easy and convincing for one party to argue that the
“backstop” must remain in place for the foreseeable future, not because that is
the party’s “objective” per se, but rather because that is the party’s
reasonable assessment of the viability of proposals for alternative
arrangements that could credibly replace the “backstop”.  In any case, paragraph A.12 also remains
merely an illustrative example and does not in any way effect the substance of
the relevant provisions of the withdrawal package.
Under paragraph A.14, the Parties recall that – in the event
that a dispute arises over compliance with the duty to act in good faith / use
best endeavours and that such a dispute eventually leads to an arbitration
panel finding of persistent default – the withdrawal agreement ultimately
allows for the aggrieved party to adopt temporary remedies, which may remain in
place until compliance with the duty to act in good faith / use best endeavours
is restored.  Such temporary remedies
could include suspension of obligations arising under the “backstop”. 
On one level, paragraph A.14 is (once again) merely a
restatement of what was already obvious from the terms of the existing
withdrawal package.  On another level,
however, paragraph A.14 paints a scenario that can only be described as either
deeply unconvincing or deeply worrying. 
If the UK were to suspend the “backstop” in such circumstances, i.e.
without any adequate alternative arrangements already in place, it could lead
directly to the erection of a customs and regulatory frontier between Northern
Ireland and the Republic of Ireland. 
Besides its obvious economic, social and political difficulties, such a
course of action would also be in direct contradiction of the UK’s longstanding
promise (e.g. as contained in the Joint
Report from December 2017
) to prevent the emergence of a “hard border”
under any circumstances.  In any event, a
UK proposal to suspend operation of the “backstop” in such circumstances would
have to be proportionate as well as temporary: given the nebulous character of
the duty to act in good faith / use best endeavours, and the relative ease with
which a party should be able to demonstrate that it had returned to full
compliance with that duty, paragraph A.14 really does seem to contain a rather
empty threat.
The Political Declaration: Potential Impact
of the Joint Statement
Much
of the text of the Joint Statement simply recalls / reiterates the existing
provisions of the Political
Declaration
(as supplemented by subsequent documents such as the UK Government
Commitments to Northern Ireland and its Integral Place in the United Kingdom (9
January 2019) and the Exchange of Letters between the UK Prime Minister and the
Presidents of the European Council and the European Commission (14 January
2019)).
By
and large, the text merely describes in more detail how the Parties plan to
pursue their common aspiration for negotiating a new future relationship, e.g.
as regards the establishment of thematic priorities and indicative timescales,
the pursuit of parallel negotiating strands, the relationship with more
specific negotiations aimed at replacing the existing “backstop” etc. 
Of
course, neither the Political Declaration nor the Joint Statement are legally
enforceable texts.  But in any case, the
additional provisions contained in the Joint Statement are almost entirely
about the process of conducting future negotiations.  They do not and could not offer any
guarantees about the outcomes of those negotiations: whether any agreement on
the future relationship will be reached at all, whether such agreement might be
concluded within any particular timescale, whether the agreement would be
approved and ratified by the competent institutions on each side, let alone the
substantive content of any final agreement on the future relationship. 
The
only provision which touches upon the substance of the principles intended to
govern negotiations for the future relationship is paragraph 5: the EU notes
the UK’s intention to ensure that the latter’s social, employment and
environmental standards do not regress from those in place at the end of the
transitional period and to provide Parliament with the opportunity to consider
future changes in Union law in these areas. 
Even setting aside the limited significance / value of those commitments
as a matter of domestic UK constitutional law, paragraph 5 is almost entirely
inconsequential as regards its substantive relevance to the legal status or
enforceable content of the existing withdrawal package.
A suggested “Unilateral Declaration” by the
UK
The
Prime Minister’s statement in Strasbourg provides that the UK will make a
Unilateral Declaration that, if the “backstop” comes into use and discussions
on the future relationship break down, so that there is no prospect of subsequent
agreement, the UK takes the position that there would be nothing to prevent the
UK instigating measures that would ultimately disapply the “backstop”. 
On
one level, that statement is entirely banal: of course, if the UK were
determined to adopt internal legal measures to disapply the “backstop”, there
is nothing that any external actor could do to prevent the UK’s domestic
institutions from so acting.  The EU
could have recourse to whatever avenues and remedies are available under
international law, e.g. dispute settlement under the Withdrawal Agreement – but
the EU cannot “prevent” the UK from acting however the UK pleases within the
UK’s own internal constitutional sphere.
On
another level, however, the Prime Minister’s statement is quite remarkable: the
UK is openly and blatantly threatening to breach its clear obligations under a
legally binding international agreement, even before that agreement has been finally
approved and ratified.  In reality, one
might again argue that this threat rings rather hollow: if the UK were
unilaterally to disapply the “backstop” in such circumstances, without any
adequate alternative arrangements already in place, it could once more lead
directly to the erection of a customs and regulatory frontier between Northern
Ireland and the Republic of Ireland. 
Even if the UK were unconcerned about the international legal
repercussions under the Withdrawal Agreement or indeed the Joint Report, the UK
would still have to manage the inevitable economic, social and political problems
such a course of action would entail for Northern Ireland and no doubt beyond. 
In
any event, it sits rather ill with the ambition and reputation of “Global
Britain” for the Government to adopt such a proudly cavalier attitude towards
respect for and compliance with international law.    
Barnard
& Peers: chapter 27



Source link

Related posts

Leave a Comment